On appeal from the Superior Court, Chancery Division, Bergen County.
Botter, Antell and Furman. The opinion of the court was delivered by Furman, J.A.D.
[182 NJSuper Page 578] The State appeals in these consolidated actions from judgment quieting title in plaintiff Velsicol Chemical Corporation to a 33-acre parcel in the Hackensack meadowlands bordering Berry's Creek, except for existing or former tide-flowed waterways, and quieting title in defendants John Clause and Oak Point Excavation and Foundation Corporation to a nearby, but not contiguous, 30.9-acre parcel, except for existing or former tide-flowed waterways. From the portion of the judgment quieting title in the State to a relocated tidal creek on its 33-acre parcel Velsicol cross-appeals.
Velsicol and Clause were both in peaceable possession. The State claimed title to substantial acreage on both properties as tide-flowed riparian lands. In New Jersey, State ownership of lands now or formerly flowed by tide water up to the high water line is long established. O'Neill v. State Hwy. Dept. , 50 N.J. 307, 322-323 (1967); Bailey v. Driscoll , 19 N.J. 363 (1955); Schultz v. Wilson , 44 N.J. Super. 591 (App.Div.1957), certif. den. 24 N.J. 546 (1957). The high-water line is defined as "the line formed by the intersection of the tidal plane of mean high tide with the shore." O'Neill , 50 N.J. at 323.
In a 19-day trial before Judge Petrella the State's primary reliance was upon maps and overlays showing the incidence of mean high tide flow, based upon infrared aerial photographs. The spectral reflectance patterns of the prevalent reedlike phragmites communis vary with differences in the water supply. Green phenotypes or signatures indicate low-lying marshland regularly flowed by the tide; pink signatures indicate so-called mid-marshland, and red signatures indicate high marshland above regular tidal flow. The State limited its claim to the areas of green signatures. On appeal it asserts that its claim is "conservative" and that the theoretical mean high-water line, if determined with precision, would fall within the areas of pink signatures.
This methodology of biological delineation by infrared photography was adopted by the State in order to meet its obligation to map its tidal claims in the Hackensack meadowlands pursuant to N.J.S.A. 13:1B-13.1 et seq. , enacted in 1969. The Supreme Court approved mapping by biological delineation in Newark v. Natural Resource Council, etc. , 82 N.J. 530 (1980), as complying with the statutory mandate. Justice Schreiber, in a dictum, left unresolved the evidentiary effect of the State's maps, thus prepared, in any subsequent quiet title action:
Although the State may seek to introduce these maps as evidence of its sovereign ownership claims in later quiet title suits, the sole issue here concerns whether the maps comply with the guidelines established in Title 13. We cannot and do not find here that the State's claims are legally warranted in whole or in
part as against other parties asserting ownership. We do not broach the question of what evidentiary effect these maps should be given in subsequent quiet title suits involving private owners. The question remains open as to whether they will satisfy either the burden of production or persuasion which the State may have in those cases.
In this consolidated litigation the pretrial order listed as an abandoned legal issue:
To the extent herein raised and subject to paragraph 2 above, the validity of the various photo maps of the Hackensack Meadowlands offered by the State as a proper performance of the mandate of Title 13 of the Revised Statutes, and whether the scientific techniques used in formulating the various photo maps of the Hackensack Meadowlands are valid, proper, pertinent, material, relevant and competent for the purpose intended, are hereby removed as issues in this proceeding, without prejudice inasmuch as the same issues shall be tested and tried in a plenary proceeding entitled " City of Newark, et als. v. Natural Resource Council, et al. ," Superior Court of New Jersey, Appellate Division, Docket A-3311-72, wherein exclusive jurisdiction is presently laid.
Paragraph 2 of the pretrial order provided that the probative value of the State's "photo map" of the area should abide the trial.
During the trial the State's maps showing biological delineation of mean high-tide flow were admitted into evidence. But Judge Petrella sustained an objection by Velsicol and Clause, the record owners of the respective parcels, to the admission into evidence of the report of Earth Satellite Corporation, which was based upon its analysis of the infrared aerial photography, of natural color photography and of field observations, in the absence of any representative of Earth Satellite. That ruling was on the third day of trial. No Earth Satellite representative or other qualified witness to ...